23-ORD-230
August 29, 2023
In re: Steve Knipper/Office of the Secretary of State
Summary: The Office of the Secretary of State (“the agency”) violated
the Open Records Act (“the Act”) when it denied a request that
adequately described records to be inspected as “vague.” The agency also
failed to explain how requested emails were exempt under
KRS 61.878(1)(i).
Open Records Decision
Steve Knipper (“the Appellant”) asked the agency to provide copies of all emails
sent to the Secretary of State “or any staff” from three individuals and eleven specific
email addresses. In a timely response, the agency denied the request as too vague
because the Appellant failed to specify by name the staff whose email accounts he
wanted the agency to search. The agency explained it “employs over 30 individuals,”
and therefore, the Appellant’s request lacked precision. The agency also claimed “the
responsive email records” of the Secretary are “preliminary in nature” and would
therefore be withheld. However, the agency further stated the Secretary did not
possess responsive records for all but one of the identified individuals or email
addresses. This appeal followed.
When a person seeks to inspect public records by receiving copies in the mail,
the person must “precisely describe” the records to be inspected. KRS 61.872(3)(b).
And a public agency may deny a request to inspect records under KRS 61.872(6) “[i]f
the application places an unreasonable burden in producing public records” on the
agency. However, an agency denying a request under KRS 61.872(6) must support its
denial with “clear and convincing evidence.” Id. When determining whether a
particular request places an unreasonable burden on an agency, the Office considersthe number of records implicated, whether the records are in a physical or electronic
format, and whether the records contain exempt material requiring redaction. See,
e.g., 97-ORD-088 (finding that a request implicating thousands of physical files
pertaining to nursing facilities was unreasonably burdensome, where the files were
maintained in physical form in several locations throughout the state, and each file
was subject to confidentiality provisions under state and federal law). In addition to
these factors, the Office has found that a public agency may demonstrate an
unreasonable burden if it does not catalogue its records in a manner that will permit
it to query keywords mentioned in the request. See, e.g., 96-ORD-042 (finding that it
would place an unreasonable burden on the agency to manually review thousands of
files for the requested keyword to determine whether such records were responsive).
When a request does not “precisely describe” the records to be inspected,
KRS 61.872(3)(b), chances are higher that the agency is incapable of searching its
records using the broad and ill-defined keywords used in the request.
On appeal, the agency continues to assert that the request is too vague and
does not “precisely describe” the records sought. The agency cites to the Office’s
decision in 19-ORD-064, in which the Office found “there is no requirement that the
public agency conduct a search” for responsive records “[i]f a requester cannot
describe the documents he wishes to inspect with sufficient specificity.” But here, the
Appellant clearly described the records he wished to inspect: the emails of every
employee in the agency, including the Secretary, which were received from specific
individuals or email addresses. The fact the agency may employ 30 people reflects the
burden of the search, not the inability to conduct one because the agency cannot
determine what is being sought. Here, the agency has not explained how it would be
unreasonably burdensome to ask all its employees to search their inboxes for the
responsive keywords. Nor has it claimed to have uncovered so many responsive
emails that it would be unreasonably burdensome to review and redact them of
information that is required to remain confidential. Simply put, the request is not too
vague, and the agency has not produced clear and convincing evidence that the
request places an unreasonable burden on it. As such, the agency violated the Act.
The agency also located some responsive emails from the Secretary but
withheld them under KRS 61.878(1)(i) because they are “preliminary in nature.”
However, when an agency denies a request to inspect records it must cite the
applicable exemption and state how it applies to the records withheld. KRS 61.880(1).
A response that merely cites and paraphrases an exemption is “limited and
perfunctory.” Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996). In
Edmondson, the agency’s response to a request stated only that “the information youseek is exempt under KRS 61.878(1)(a)(k)(l) [sic].” Id. The agency failed to explain
how any of the three exemptions applied to the records withheld, and for that reason,
the court held, it violated KRS 61.880(1). Id.
Kentucky courts have refined the level of detail KRS 61.880(1) requires for a
“brief explanation” in support of a denial. As stated by the Supreme Court of
Kentucky, an agency is not “obliged in all cases to justify non-disclosure on a line-by-
line or document-by-document basis.” City of Ft. Thomas v. Cincinnati Enquirer, 406
S.W.3d 842, 851 (Ky. 2013). Rather, “with respect to voluminous [open records]
requests . . . it is enough if the agency identifies the particular kinds of records it
holds and explains how [an exemption applies to] the release of each assertedly [sic]
exempt category.” Id. (discussing the “law enforcement exception” under
KRS 61.878(1)(h)). Of course, “if the agency adopts this generic approach it must itself
identify and review its responsive records, release any that are not exempt, and
assign the remainder to meaningful categories. A category is meaningful if it allows
the court to trace a rational link between the nature of the document and the alleged”
exemption. Id. (quotation omitted). The Court also has acknowledged the Act must
be “workable.” Ky. New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76, 89 (Ky. 2013).
As a result, when certain types of information that are kept in public records are
routinely exempt, an agency “need not undertake an ad hoc analysis of the
exemption’s application to such information in each instance, but may apply a
categorical rule.” Id.
The takeaway from these decisions is that—at least with respect to voluminous
requests—an agency must break up responsive records into meaningful categories
and explain how the exemptions cited for each category of records applies. Here, the
agency claimed the emails are all exempt under KRS 61.878(1)(i) because they are
“preliminary in nature.” In its initial response, the agency also explained that
“[p]reliminary memoranda, drafts, notes, etc., not incorporated into final action are
preliminary and therefore exempt from disclosure.” However, the agency did not
describe the content of the emails or explain how they qualify as preliminary drafts
or notes. See, e.g., 22-ORD-262 (the agency properly invoked KRS 61.878(1)(i) by
assigning responsive emails to categories and describing the content of each
category). Accordingly, the agency’s initial “limited and perfunctory” response
violated the Act. Edmondson, 926 S.W.2d at 858.
On appeal, the agency still has not described the contents of the emails, but
instead argues “government emails are exempt from the Open Records Act as
preliminary until incorporated into a ‘final agency action.’” See, e.g., Univ. ofLouisville v. Sharp, 416 S.W.3d 313, 316 (Ky. App. 2013). But in Sharp, the
University had described the withheld emails as pertaining to a hospital merger that
had not been completed, which the Office was able to confirm by reviewing the emails
confidentially under KRS 61.880(2)(c). Here, as discussed, the agency has not
described the content of the emails with enough specificity for the Office to determine
whether final action has or has not occurred. Thus, while the responsive emails may
indeed be preliminary if they discuss options that have not been adopted into final
action, the agency has not carried its burden of proving that fact under
KRS 61.880(2)(c).
A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court under KRS 61.880(5) and KRS 61.882 within 30 days from
the date of this decision. Under KRS 61.880(3), the Attorney General shall be notified
of any action in circuit court, but shall not be named as a party in that action or in
any subsequent proceedings. The Attorney General will accept notice of the complaint
emailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ Marc Manley
Marc Manley
Assistant Attorney General
#265
Distributed to:
Steve Knipper
Jennifer Scutchfield